Much has been said about the Housing and Development Board (HDB)’s recent move to back down from its compulsory acquisition of a five-room HDB flat in Bukit Batok. For those who do not know the story: the owner of the flat, Chew Teck Fatt was given notice of intent by HDB to acquire the flat as a result of HDB’s decision that his flat had been sublet illegally. HDB’s decision was in turn a result of its own investigation. In August 2012, the Strait Times reported that Chew had attempted to appeal to the HDB several times and also went to his member of parliament for help. Read the article here, reproduced by Stomp. When all failed, he made a judicial review application to review HDB’s decision.

At that time, the Straits Times suggested that such a judicial review would be unlikely to succeed. They referenced the Housing and Development Act, which seems to imply that the courts have no power to reverse a final decision by the minister to reject appeals against compulsory acquisition. Market players had been eagerly anticipating this landmark decision, which would indicate whether the courts have the power to review a decision by the HDB. But before this could come to pass, HDB effectively averted the legal challenge by making the unexpected move of withdrawing the intention to acquire the flat. In doing so, it has been ordered by the court to pay the owner’s legal fees!

It is probably fair to say that a number of us were surprised with the move as it appears, at least at face value, that HDB gains nothing from backing away from the court application. Even more so, considering it has always taken a serious view of unauthorised subletting and has been taking strong action against those who flout the rules. As many online commentators have noted, this could set a precedent of HDB lessees attempting to overrule HDB decisions through judicial review applications. Many would be willing to try their luck given the value of a HDB flat these days!

The one thing that struck us in this story is the lack of transparency in all stages leading up to the withdrawal of acquisition notice by HDB. We do believe, in fact, that it is this very lack of transparency that has created much unnecessary confusion and agony to all parties in this case.

Stage 1. Rules for sub-letting

The rules on unauthorised subletting in HDB’s own website set out the Minimum Occupation Period (MOP) and requirement to seek prior approval from HDB. Apart from those clauses, little else is stated. How does HDB determine whether the owner really occupies the flat in question? We need to have clearer rules. “Locking one room” in a HDB flat is a common practice that is often misconstrued as within the rules, but actually isn’t. Its website states that keeping one room locked and coming back to the flat only “occasionally” is unacceptable. So what is acceptable? Are there time-based criteria, or other methods of qualifying as owner occupation? As illustrated by this case, a clear stipulation of what constitutes residence by the owner is needed.

Having clear and undisputed rules on the matter will only be beneficial to all parties. It will be beneficial to the owner and tenant(s) who will need to know the proper and correct procedure and guidelines to follow. And HDB will be able to easily direct and explain to unauthorised owners how they have fallen short. There will be less unintentional infringement of the rules by owners and tenants and less anguished enforcement of the rules by HDB personnel.

Stage 2. Gathering evidence of infractions

Once the rules are spelled out clearly, there is still the matter of gathering supporting evidence that a rules violation has occurred. We do not know how HDB does its investigations currently. As reported by HDB in 2010, it conducted 7,000 flat inspections, out of which around 1,800 resulted from public feedback. As a result, 95 owners were taken to task for unauthorised subletting. Compulsory acquisition action was taken against 39 out of the 95 cases, as they had “blatantly infringed the subletting rules”. It is not known what action was taken against the rest.

In Chew’s case, the Strait Times article in August last year mentioned a single visit from HDB in July 2011 and a written statement made by one of the tenants, who has since recanted his statement. Other than that, there is scant information on what was or was not done during the very investigation that led to the notice of intent to acquire the five-room flat. We certainly hope that HDB does more than that in each of its investigations.

We would suggest that HDB be open about:

How does it differentiate between genuine owner occupiers, whose business or other concerns keep them away from home, and those looking to game the system by skirting the rules?

What other ironclad evidence does it gather for its investigations, apart from eye witness statements, which can be?

How often does it visit the flat (with or without tenant’s knowledge) before making a conclusion of its owner occupancy?

How are the investigators trained to gather and process evidence?

We would think that HDB should ensure quality evidence is gathered by trained personnel with sufficient and clear knowledge of the rules (see Stage 1), and obviously evidence must be gathered in a way that is impartial and above reproach.

If the evidence is not impregnable and the method of collection is poor, HDB will be unable to unequivocally substantiate its case to the owner’s satisfaction and acceptance. We would expect that when investigations are conducted, the investigators will need to present their case to the board and the minister who makes the ultimate decision under the HDB Act.

Stage 3. Clarity of appeal process

We at BLUTA aren’t here to judge whether the owner did, or did not, flout HDB’s rules. Incidentally, the court was not called to rule upon this either, so who are we to say? However, there must be a clear avenue for owners to appeal, and if rejected, a clear, substantiated reasoning given as to why he has been judged to have flouted the rules (see Stage 2 above).

Chew said he had made several appeals to the HDB and to his MP which all failed. The Straits Times article quoted his claim that “it did not give him the chance to address the case as a whole”. We do not know exactly what he had done with respect to his appeals, and we strongly believe that HDB should make it clear in its rules how an owner may appeal his or her case. Such owners should be heard fairly before an independent party or committee. Perhaps HDB may even publish statistics on the number of appeals and success rates.

Having transparency in this aspect will only be fair to owner occupiers, while HDB can minimise dealing with costly legal challenges for frivolous cases.

Stage 4. HDB withdrew its intention to acquire

On 20 March, at a High Court session for Chew’s judicial review application, HDB withdrew its intention to acquire Chew’s flat and Chew in return agreed not to proceed with his judicial review application. Once again, HDB has missed an opportunity to clarify its actions. Why did it decide to withdraw its notices? A spokesperson explained that “additional information had surfaced after Mr Chew had filed his court application” and HDB “decided to give him the benefit of doubt”. And it was added that the move will avoid unnecessary litigation and save both time and costs for the parties involved. What does that mean?

How can a new piece of evidence, surfacing almost two years after the investigation, be so material?

By saying Chew was given “benefit of doubt”, does it mean that the new piece of evidence may not conclusively affect the decision to acquire the flat?

Why does HDB give Chew “benefit of doubt”? Does HDB give that to all owner occupiers before issuing its notice of intent to acquire their flats? Or is it given to Chew partially or materially because he has taken the bold step of bringing HDB to court?

If the answer to the last question is yes, we are concerned that HDB’s action will not achieve its intention to avoid unnecessary litigation and save time and costs. In fact, the opposite may be true. Given the increasing HDB prices, legal fees could be a small cost for HDB owners to secure a chance to effectively overrule or override HDB’s decision by getting HDB to withdraw its notices of intent to acquire flats.

A clear and simple clarification with regard to Chew’s case and HDB’s actions would have lessened the speculation and controversy. In turn, this would have mitigated the public loss of confidence in HDB’s ability to impartially ensure proper use of public housing. The message must be clear that unauthorised subletting is not to be taken lightly by the government board and that nobody will be let off if he or she is unequivocally found to have committed the infringement. Unfortunately, in this case, we are left wondering whether an escape route has been found.

At one time, it was suggested that a judicial review is not a possible channel to appeal HDB’s decision of compulsory acquisition. It is apparently implied under the HDB Act that the courts have no power to reverse a final decision by the minister. It would appear that HDB too, held that position. However, since HDB has withdrawn its intention to acquire Chew’s flat, no express decision has been made on whether the decisions of the HDB and the office of the Minister of National Development can be the subject of judicial review.

We cannot predict or second guess what the court may have ruled on this particular legal issue, but our thoughts are that if it is true that HDB cannot be subject to judicial review, this represents an absolute lack of transparency. If the highest legal power in Singapore cannot oversee decisions made by a government body, then that government body is effectively a black box! It operates above the law, in ways that no one is allowed to fathom or observe. We do not believe this could have been the intention of the law.

We have considered that, by withdraw its notice of intention, HDB could be making a strategic play so as to prevent an actual court ruling from materialising. If such a ruling did materialise, it would be a precedent that HDB decisions are subject to judicial review. This would force HDB to be more transparent in its treatment of alleged illegal sub-letters, and would constitute court “interference” in its conduct of business.

However, such an attitude, and resulting line of logic, seems highly flawed to us. Since Singapore is a democracy, even government bodies should be subject to legal scrutiny and procedural review. Such oversight ensures that all processes are impartial and transparent for all democratic citizens to see. Of course, cultivating such an attitude has other ramifications – it is also detrimental to public confidence in a government body, as we have pointed out.

All in all, we feel that HDB has much to benefit, if it draws the proper lessons from this experience of Chew’s case. It is our appeal that HDB should remain vigilant against unauthorised subletting, but the way it handles the issue can be much improved. Being more open and transparent in its rules, policies and processes will only enhance its ability to manage and ensure that its fight against illegal sub-letters will be more robust, in a way that can stand up to scrutiny.

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3 Responses to “HDB Subletting Decision May Be Seen in Wrong Light Due to Lack of Transparency”

It simply will not do for government organizations to act in such a manner as to be perceived as unwilling and unable to stand up to judicial and/or public scrutiny. It only results in increasing loss of respect and faith in the integrity and impartiality of the government in governance, not that it has much respect and faith and goodwill left in the public. Let not the rot in the governing party spread further amongst government institutions.

Probably a case of lessee subletting 1 or 2 bedrooms, and locking up 1 bedroom. HDB rules states that the lessee must continue staying in the flat. But maybe the lessee was posted overseas for work, and wasn’t around when HDB officers checked.

In this kind of situation, the tenants’ behaviour and attitudes play a very important role. In the first place, if tenants are quiet and conscientious, and don’t have inconsiderate habits or bad behaviours, most HDB people won’t bother to complain or even notice much. Maybe without the HDB lessee around to jaga, the tenants decided to throw loud parties, have orgies, or have bad habits such as throwing rubbish/ciggies down, block common corridor with rubbish & barang barang. All these will make neighbours angry and they will find out more and complain to the authorities.

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